Opinion
C/A 4:23-4473-HMH-TER
10-10-2023
James Carl Whaley, #1001117, a/k/a James C. Whaley, #357132, Petitioner, v. Secretary of the U.S. Dept of the Treasury, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is an action for writ of mandamus under 28 U.S.C. § 1361. Petitioner is a civil state pretrial detainee, proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the District Court. See 28 U.S.C. §§ 1915(e); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
Mandamus actions sound in civil rights actions; thus the applicable filing fee is for a civil rights action. Pinion v. FCI Edgefield, No. 8:20-CV-01352-JFA-JDA, 2020 WL 2308362, at *1 (D.S.C. Apr. 15, 2020), report and recommendation adopted, 2020 WL 2308312 (D.S.C. May 8, 2020)(collecting cases). Further, mandamus actions under 28 U.S.C. § 1361 are not categorized by the Administrative Office of Courts as habeas actions.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915 and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978). To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action “fails to state a claim on which relief may be granted,” “is frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A finding of frivolity can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint may be subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Petitioner has filed a “Petition for Writ of Mandamus; as an Emergency Order.” (ECF No. 1). Plaintiff requests COVID-19 stimulus checks. Petitioner alleges he has attempted to claim the EIPs several times. (ECF No. 1).
The Mandamus and Venue Act grants federal district courts “jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. The writ of mandamus is intended to provide a remedy for a petitioner “only if he has exhausted all other avenues of relief and only if the [respondent] owes him a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984). Mandamus is an “extraordinary remedy” and should only be issued if there is a “clear abuse of discretion” or “usurpation of the judicial power.” Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S. 296, 308-09 (1989). The elements Petitioner must demonstrate are:
(1) he has a clear and indisputable right to the relief sought; (2) the responding party has a clear duty to do the specific act requested; (3) the act requested is an official act or duty; (4) there are no other adequate means to attain the relief he desires; and (5) the issuance of the writ will effect right and justice in the circumstances.U.S. ex rel. Rahman v. Oncology Assocs., P.C., 198 F.3d 502, 511 (4th Cir. 1999)(citing Kerr v. U.S. Dist. Ct. for N. Dist. of California, 426 U.S. 394, 403 (1976); In re First Fed. Sav. & Loan Ass'n of Durham, 860 F.2d 135, 138 (4th Cir. 1988).
The stimulus checks, otherwise known as Economic Impact Payments (“EIP”) were established by the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), which was signed into law in March 2020, and the Consolidated Appropriations Act of 2021 (the “CAA”) that was signed into law in December 2020. The CARES Act provided a tax credit of $1,200 to eligible individuals. 26 U.S.C. § 6428(a). An “eligible individual” is defined broadly. Id. § 6428(d) (emphasis added). The statue provided for payment in the form of an “advance refund” to be disbursed “as rapidly as possible,” but it expressly prohibited any refund or credit after December 31, 2020. Id. § 6428(f)(2), (3). The CAA authorized a $600 payment under a scheme similar the CARES Act. 26 U.S.C. § 6428A(a)-(f). Under the CAA, no refund or credit was to be made or allowed after January 15, 2021, except in situations that are not applicable here. Id. § 6428A(f)(A)(ii). In May 2020, the IRS published responses to “Frequently Asked Questions”on the IRS website indicating that incarcerated persons do not qualify for an EIP. See Scholl v. Mnuchin, 489 F.Supp.3d 1008, 1022 (N.D. Cal. Sept. 24, 2020) (“Scholl I”), appeal dismissed, No. 20-16915, 2020 WL 9073361 (9th Cir. Nov. 20, 2020). The IRS, in June 2020, updated its internal procedures manual to reflect the policy of excluding incarcerated persons from EIP eligibility. Id. Based on the court's own records in prior cases, Petitioner was incarcerated in prison and not as a detainee up until February 2021. No. 4:20-cv-4366-HMH. Also, there is no private right of action under the CARES Act or the CAA. Ballard v. U.S. Treasury Dep't, 2022 WL 794697, at *4 (E.D. N.C. Jan. 6, 2022), report and recommendation adopted, 2022 WL 785041 (E.D. N.C. Mar. 14, 2022)(collecting cases of dismissals of claims seeking court intervention to obtain EIPs).
The CARES Act imposed a December 31, 2020 deadline for EIPs to be made or allowed. “After that date, funds in the form of EIPs cannot be advanced, and eligible persons seeking credit under the Act must do so in connection with a 2020 income tax return.” Patterson v. IRS/Treasury Dep't, 2021 WL 5396060, at *2 (N.D. Ohio Nov. 18, 2021)(summarily dismissing a mandamus action). By statute, Respondent has no duty to and cannot provide Petitioner with relief that he seeks, the EIP check, at this time, because if Petitioner is eligible to receive a tax credit under the CARES Act he can now only obtain it by filing or amending a 2020 tax return. The Petition does not demonstrate a clear duty to act. Id.; see also Taylor v. Internal Revenue Serv., 2022 WL 4545121, at *3 (S.D.Miss. Sept. 28, 2022)(collecting cases).
Petitioner cannot meet the first or second element of the test for mandamus relief. The statute is clear Petitioner does not have a clear and indisputable right to the relief he requests and the Respondent does not have a clear duty to do the specific act requested.
RECOMMENDATION
It is recommended that the District Court deny the Petition for Writ of Mandamus without issuance and service of process.
Petitioner's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).